The opinion of the court was delivered by: Swain, District Judge.
Plaintiff Michael Mack ("Plaintiff") alleges that defendants
The Port Authority of New York and New Jersey ("Port Authority")
and Dr. Scott Bergman ("Dr.Bergman"*fn1) (collectively,
"Defendants") created a hostile work environment and subjected
him to disparate treatment in violation of the Equal Protection
Clause of the Fourteenth Amendment to the Constitution of the
United States. He seeks damages pursuant to 42 U.S.C. § 1983
for alleged mental distress and economic loss. Plaintiff
also alleges that Defendants' actions constituted intentional
racial discrimination and wanton disregard of his civil rights,
and seeks compensatory and punitive damages pursuant to
42 U.S.C. § 1981. In addition, based on the same set of
factual allegations, Plaintiff
seeks damages pursuant to New York Executive Law section 296,
et seq.*fn2 Plaintiff, whose employment with the Port
Authority was terminated, also seeks reinstatement. The Court
has federal question jurisdiction of Plaintiffs section 1983 and
1981 claims. See 28 U.S.C.A. § 1331 (West 1993). Defendants
have moved for summary judgment.
For the reasons that follow, Defendants' motion is granted.
The following facts are undisputed. Plaintiff is
African-American. (Compl. ¶ 1.) The Port Authority is a bi-state
agency created by a compact between the states of New York and
New Jersey. (Id. ¶ 4.) Plaintiff commenced employment with the
Port Authority in 1984. (Defs.' Mem. Supp. Summ. J. ("Defs.'
Br.") at 7; Mack Aff. ¶ 4.) In 1986, Plaintiff became a Tunnel
and Bridge Agent at the Holland Tunnel. (Mack Aff. ¶ 4.) One of
Plaintiffs jobs in this position involved driving a wrecking
truck, which required a commercial driver's license. (Defs.' Br.
at 7; Tr. 5/31/2000 Mack Dep. at 64.) From 1986 through 1998, in
addition to his position as a Tunnel and Bridge Agent, Plaintiff
voluntarily rotated assignments, working as a stock keeper at
various Port Authority sites, including La Guardia Airport,
Kennedy Airport, and the World Trade Center. (Mack Aff. ¶ 5.)
Plaintiff alleges that, while he worked on the World Trade
Center stockroom assignment, his supervisor, Paul Iannacone
("Iannacone"), harassed him. (Mack Aff. ¶ 6.) Plaintiff alleges
generally that Iannacone made offensive racial jokes, referred
to Plaintiff as "boy," and said that Plaintiff was there to
"appease" him. (Mack Aff. ¶ 6.) The only specific instance of
racial joking identified by Plaintiff is that Iannacone
allegedly made jokes about O.J. Simpson during the O.J. Simpson
trial. Plaintiff generally asserts that "Whatever was going on
in the media at the time, if it concerned a black person, they
[sic] were jokes." (Tr. 6/27/2000 Mack Dep. at 245.) Plaintiff
also asserts that Iannacone targeted non-white employees,
including Plaintiff, for petty criticism, and assigned the most
onerous tasks to them. (Mack Aff. ¶ 6.) The only specific
instance of such alleged disparate assignments identified by
Plaintiff is that, after the 1993 terrorist bombing at the World
Trade Center, Iannacone scheduled non-white employees to work
the night shift without the possibility of overtime, but
scheduled white employees to work daytime shifts with the
possibility of overtime. (Id. ¶ 6.) Plaintiff filed a
complaint about Iannacone's alleged harassment with the Port
Authority's Office of Equal Opportunity ("OEO") in 1996. (Id.
¶ 6.) At his deposition, Plaintiff testified that the OEO
complaint concerned "[t]he way [Iannacone] spoke to me,"
differences in work assignments, being given shorter lunch
breaks than Iannacone, Iannacone's criticism of Plaintiffs work
performance as inconsistent with that of others ("maybe [that
Plaintiff did not do the work in the same fashion as] a white
employee") and, possibly, "a time when [Iannacone] said to me
that I must appease him." (Tr. 5/31/2000 Mack Dep. at 88-89,
94.)*fn3 Plaintiff asserts that the Port
Authority did not take any action against Iannacone. (Id. ¶
6.) Plaintiff alleges that, as a result of Iannacone's conduct,
he suffered stress and depression, for which he was treated by a
Port Authority psychiatrist on a weekly basis for one month.
(Id. ¶ 6.)
In January 1998, Plaintiff was promoted to the position of
Senior Stock Keeper and assigned to the World Trade Center stock
room. (Id. ¶ 7.) Plaintiff alleges that Iannacone supervised
Plaintiff from time to time and continued to harass him, by
paying "special attention" to him and calling him a "good boy"
every time he finished a task, citing Plaintiff and other
non-white employees for returning later from breaks while white
employees often came back late from breaks but were not
reprimanded, "constantly" accusing Plaintiff and other non-white
employees of "poor performance," and always sa[ying] he
[Iannacone] needed to be appeased. (Id. ¶ 7; Tr. 5/31/2000
Mack. Dep. at 245.)
Port Authority employees who maintain a commercial driver's
licenses are required to submit to random drug tests under the
Omnibus Transportation Testing Act of 1991. On July 6, 1996,
Plaintiff was tested for drugs and tested positive for cocaine.
(8/9/96 Notice to Discipline, Ex. D. to Defs.' Notice of Mot.)
Because he tested positive, the Port Authority informed
Plaintiff that he would be terminated. (Id.)
The Transport Workers' Union negotiated a disciplinary waiver
agreement for Plaintiff on August 9, 1996. (8/9/96 Disciplinary
Waiver Agreement, Ex. E to Defs.' Notice of Mot.) The agreement
provided that Plaintiff would submit to random drug testing for
a period of sixty (60) months and enter a drug rehabilitation
program. (Id.) The agreement also provided that, if Plaintiff
tested positive again, he would be subject to administrative
action. (Id.) In addition, the agreement provided that
Plaintiff would attend psychological counseling sessions.
Plaintiff was referred to Bergman, a clinical psychologist at
the Port Authority's Office of Medical Services. (Mack Aff. ¶
Plaintiff alleges that Bergman was cold and disdainful toward
him because Plaintiff is African-American. Plaintiff asserts
that he felt that Bergman provided no meaningful counseling
because the sessions generally lasted no more that five minutes
and Bergman would only make "small talk" with him. (Id. ¶ 9.)
On November 10, 1997, Plaintiff again tested positive for
cocaine. (Tr. 6/27/2000 Mack Dep. at 185.) The Port Authority
notified Plaintiff that his employment would be terminated on
November 17, 1997, as a consequence of the positive drug test.
(11/17/97 Notice of Intention to Discipline, Ex. F. to Defs.'
Notice of Mot.) Plaintiff entered into another disciplinary
waiver agreement negotiated by his union, in which he agreed to
random drug testing for sixty (60) months and to cooperate with
the Port Authority's Office of Medical Services. The agreement
provided that failure to meet these obligations could result in
termination and that one positive test result would result in
his termination. (11/17/1997 Settlement Agreement, Ex. G. to
Defs.' Notice of Mot.)
Plaintiff alleges that Dr. Bergman stated that the "only
person with a temperature like [Mack's sample] is either dead or
an animal." (Mack Aff. ¶ 13.) Plaintiff was incensed by Dr.
Bergman's remark and allegedly told him that he "was not willing
to participate in any further test" until he spoke with his
union representative, Steve Picone ("Picone"). (Id.) Dr.
Bergman allegedly informed Plaintiff that, if he left the Office
of Medical Services without providing another sample, there
would be "trouble." (Id.; cf. Medical Dep't Chart Summary, Ex.
I. to Defs.' Notice of Mot.) While there is some dispute as to
the particulars of the parties' verbal interaction, it is
undisputed that Plaintiff left the Medical Services office
without providing an additional sample. (See, e.g., Mack Aff.
at ¶¶ 13, 14, 16.) Plaintiff returned to his work area and called
Picone. (Mack Aff. ¶ 13, Tr. 5/31/2000 Mack Dep. at 145.) After
speaking with Picone, Plaintiffs stock room supervisor told
Plaintiff that he had to leave the building (Mack Aff. 14; Tr.
5/31/2000 Mack Dep. at 146) because he refused to provide a
second urine sample. (Defs.' Br. at 10.) Port Authority security
personnel then escorted Plaintiff out of the building. (Mack
Aff. ¶ 14.) Plaintiff received a notice of termination the next
day (May 7, 1998) based on his failure to provide a second urine
specimen. (Id. ¶ 15; 5/7/98 Port Authority Letter to Mack, Ex.
K to Defs.' Notice of Mot.)
Plaintiff asserts that the alleged harassment by Iannacone and
the alleged disdainful treatment by Dr. Bergman, as well as Dr.
Bergman's alleged comment about the temperature of Plaintiffs
May 6, 1998 urine sample and request for a second sample, and
the subsequent termination of his employment, were racially
motivated. Defendants seek summary judgment, asserting that any
cause of action based on alleged 1996 or earlier conduct of
Iannacone is time-barred, that the conduct of Iannacone and Dr.
Bergman was not sufficiently severe and pervasive to support a
hostile work environment claim, that Plaintiffs termination was
legitimately based on his failure to cooperate in accordance
with the disciplinary waiver agreement, and that Dr. Bergman is
entitled to qualified immunity.
Summary Judgment Standard
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
The trial court must view the record in the light most favorable
to the non-moving party and resolve all uncertainties and draw
all reasonable inferences against the moving party. Hill v.
Taconic Dev. Disabilities Services Office, 181 F. Supp.2d 303,
316 (S.D.N.Y. 2002) (citing Cifarelli v. Vill. of Babylon,
93 F.3d 47, 51 (2d Cir. 1996)). A material fact is genuinely
disputed only if, based on that fact, a reasonable jury could
find in favor of the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d
Cir. 2001); Hill, 181 F. Supp.2d. at 316; Turner v. Nat'l R.R.
Passenger Corp., 181 F. Supp.2d 122, 126 (N.D.N.Y. 2002)."
Affidavits and depoitions must be scrutinized for circumstantial
evidence which, if believed, would show discrimination."
Turner, 181 F. Supp.2d at 127 (citing Gallo v. ...